Citation Nr: 1133044
Decision Date: 09/07/11 Archive Date: 09/15/11
DOCKET NO. 07-17 102 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for hypertension, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and as secondary to sleep apnea or asbestos exposure.
2. Entitlement to service connection for sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and as secondary to asbestos exposure.
3. Entitlement to service connection for a respiratory disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and as secondary to asbestos exposure.
4. Entitlement to service connection for a skin disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and as secondary to asbestos exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
B. Thomas Knope, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1987 to May 1987, September 1990 to April 1991, and February to June 2003.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama.
In October 2009, the Veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file.
This matter was previously before the Board in March 2010 at which time it was remanded for additional development. It is now returned to the Board.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010).
In this case, the Veteran served on three separate periods of active duty. Specifically, he served in the Army National Guard from January 1987 to May 1987 and from September 1990 to April 1991. He also served in the Air National Guard from February 2003 to June 2003. The latter two periods of active duty both involved service in the Southwest Asia Theater of Operations.
In August 2004, the Veteran submitted claims for entitlement to service connection for a skin disorder, a respiratory disorder characterized by coughing, sleep apnea and hypertension, asserting that these disorders are due to his service in Southwest Asia as well as due to exposure to asbestos. He has also asserted that his hypertension is a secondary result of his sleep apnea.
In March 2010, the Board remanded these issues to the RO for further development. Specifically, the Board instructed that the RO to take the following action:
* obtain the Veteran's personnel records from all three periods of active duty service in order to determine whether he was exposed to asbestos while on active duty;
* obtain the Veteran's treatment records from the VA Medical Center in Tuscaloosa, Alabama, since November 2008;
* schedule the Veteran for a VA examination and obtain an opinion as to whether the claimed disorders were related to active duty service in the Southwest Asia Theater of Operations (or may be deemed an "undiagnosed illness" related to such service), whether these disorders were related to asbestos exposure, and whether his hypertension is a secondary result of his sleep apnea.
The record reflects that the Veteran's service personnel records, as well as his VA treatment records since November 2008 were obtained. Moreover, the Veteran was provided a VA examination in January 2011. However, the Board determines that this examination requires further development and, accordingly, there has not been substantial compliance with this instruction. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
First, in the March 2010 Remand, the Board asked the VA examiner to provide an opinion as to whether the Veteran's sleep apnea is a manifestation of an undiagnosed illness and, if not, whether it was at least as likely as not that this disorder was related to or aggravated by active duty service. The VA examiner was also asked to provide an opinion as to whether this disorder was due to the Veteran's hypertension. During the examination, the VA examiner recognized he Veteran's diagnosis of sleep apnea, but did not provide this opinion. Therefore, an opinion is required with regard to these questions.
Regarding the Veteran's claimed respiratory disorder, the VA examiner declined to render an opinion on this issue, as "no other respiratory diagnosis has been established." However, this conclusion does not account for the fact that the Veteran has been previously diagnosed with respiratory disorders.
For example, the evidence indicates that a 6 mm granuloma was observed in the right second anterior intercostal space since at least August 2004, although the Board notes that a treatment note in May 2008 diagnosed no acute disease. A pulmonary function test in April 2005 also noted an obstructive lung defect, albeit minimal. Significantly, he has been prescribed albuterol for asthma control.
Thus, while the VA examiner was unable to diagnose a respiratory disorder at the time of the January 2011 examination, there was no discussion his previous diagnoses. Therefore, unless the examiner can establish that the prior diagnoses were inaccurate, an opinion should be provided with a presumed current respiratory disorder.
It should also be noted that the VA examiner's failure to diagnose a lung disorder falls squarely upon the issue of whether the Veteran's symptoms may be characterized as an undiagnosed illness due to service in the Southwest Asia Theater of Operations. Thus, clarification is also required regarding this aspect of the claim.
Regarding the Veteran's complaints of a skin disorder, the examiner concluded that this disorder was not related to active duty service in light of a private treatment note from 2007 indicating that the rash was drug induced. However, this opinion fails to address the statements made by the Veteran, as well as by members of his family, indicating that he has experienced rashes on his chest and neck since 1993. Therefore, prior to adjudication, the VA examiner should address these past complaints. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Also, a more in-depth analysis is required regarding of what prescribed drugs are causing this disorder.
In addition to the clarifications to the opinion, the Board also concludes that some additional procedural development is required. Specifically, in August 2004, the Veteran was provided notice as to what evidence is required in order to establish entitlement to service connection on a direct basis. In a January 2005 letter, he was also notified as to what evidence is required to establish entitlement to service connection based on an undiagnosed illness due to service in the Southwest Asia Theater of Operations.
However, it does not appear that the Veteran has received notice on what evidence is required to establish entitlement to service connection as secondary to a separate service-connected disorder, see 38 C.F.R. § 3.310 (2010), or as due to exposure to asbestos, see VA Adjudication Procedure Manual, M21-1 (M21-1), Part IV, Subpart ii, Ch. 2, § C.9 (July 20, 2011). Therefore, the Veteran should be notified as to how service connection may be established on these bases.
Finally, while the RO did as instructed and acquired all VA records since November 2008, it appears that there are no VA treatment records have been associated in the claims file from July 2005 until October 2007. It should be noted that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, any VA treatment records from this time frame should be acquired and associated in the claims file.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall obtain and associate with the claims file all medical records from the VA Medical Center in Tuscaloosa, Alabama, dated from July 2005 to October 2007 and since February 2011.
If the Veteran has received any private treatment for any of the disorders on appeal, the RO/AMC shall attempt to acquire the associated records after obtaining the Veteran's authorization.
2. The RO/AMC shall provide the Veteran with VCAA compliant notice addressing the evidence necessary to establish service connection as secondary to a service-connected disability and as due to asbestos exposure.
3. After the above development is complete, the RO/AMC shall send the claims file to the VA examiner who examined the Veteran in January 2011 in order to provide an addendum to the opinions provided at that time. Specifically, the VA examiner's opinion should address the following:
(a) Whether it is at least as likely as not that the Veteran's
hypertension or sleep apnea were incurred or attributable to any of his three periods of active duty service.
i. If either of these disorders were present prior to any of these periods of active duty, an opinion is also requested as to whether is at least as likely as not that it was aggravated beyond the natural progression of the disorder.
ii. If any diagnosed sleep disorder is determined not to have been incurred in or aggravated during military service, state whether it is at least as likely as not that the disorder (i) was caused by or (ii) is aggravated by any current diagnosis of hypertension.
(b) Whether it is at least as likely as not that the Veteran's respiratory disorder was caused by or aggravated by active duty service, or is related to any incident thereof, including exposure to asbestos.
i. For purposes of this opinion, the examiner may presume that a current disorder exists.
(c) Whether it is at least as likely as not that the Veteran's skin disorder was caused by or aggravated by active duty service, or is related to any incident thereof, including exposure to asbestos.
In all cases, the examiner must consider the Veteran's competent statements as to the onset and continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service medical records to provide a negative opinion).
4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. If the appeal is returned to Board without compliance of the remand directives by the RO/AMC, or the RO otherwise having jurisdiction of the claims file, another remand will likely result. Stegall, 11 Vet. App. at 271.
5. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response.
The Veteran need take no action until he is so informed. He may submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This remand is to obtain additional information and comply with due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action.
This claim must be afforded expeditious treatment. All claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).